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B-147344, APR. 19, 1962

B-147344 Apr 19, 1962
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YOU ORIGINALLY CLAIMED AND WERE PAID $260. THE ACTUAL WEIGHT OF THE SHIPMENT WAS 39. THE BILL OF LADING INDICATES THAT ONE 35-FOOT TRUCK WAS FURNISHED BUT DOES NOT INDICATE THE SIZE ORDERED. YOU ORIGINALLY CLAIMED AND WERE PAID $104. THE ACTUAL WEIGHT OF THE SHIPMENT WAS 7. N-14224528 WERE CLAIMED ON THE GROUND THAT THE LIGHT AND BULKY ARTICLES RULE. "* * * IS ON A PER ARTICLE BASIS * * *. YOUR CLAIM ON THIS SHIPMENT WAS DISALLOWED IN ITS ENTIRETY FOR THE REASON THAT SUBPARAGRAPH (B) OF TARIFF FULE 120 PROVIDES THAT CHARGES UNDER THE LIGHT AND BULKY ARTICLES RULE WILL NOT EXCEED THE CHARGES THAT WOULD ACCRUE UNDER RULE 110. WHEN THE SHIPMENT IS COMPLETELY LOADED ON EQUIPMENT ORDERED AND FURNISHED.

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B-147344, APR. 19, 1962

TO A. B. JAMES FREIGHT LINES:

IN YOUR LETTER OF SEPTEMBER 28, 1961, FILE NO. N-698/51 UC-117, TK 717360, YOU REQUEST REVIEW OF THE PARTIAL DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. UC-117-N-698, FOR ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF MIXED MISCELLANEOUS MATERIAL FROM OAKLAND TO SAN DIEGO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. N-14224528, DATED OCTOBER 18, 1951, AND FOR THE TRANSPORTATION OF 15 BOXES CONTAINING AIRPLANE FUSELAGE FROM NORTH ISLAND TO EL CENTRO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. N-30226167, DATED OCTOBER 24, 1951.

FOR THE SERVICES PERFORMED UNDER GOVERNMENT BILL OF LADING NO. N 14224528, YOU ORIGINALLY CLAIMED AND WERE PAID $260, COMPUTED ON THE BASIS OF AN ALL-FREIGHT RATE OF 65 CENTS PER 100 POUNDS AT A MINIMUM WEIGHT OF 40,000 POUNDS. THE ACTUAL WEIGHT OF THE SHIPMENT WAS 39,812 POUNDS. THE BILL OF LADING INDICATES THAT ONE 35-FOOT TRUCK WAS FURNISHED BUT DOES NOT INDICATE THE SIZE ORDERED. ALSO, FOR THE SERVICES PERFORMED UNDER GOVERNMENT BILL OF LADING NO. N-30226167, YOU ORIGINALLY CLAIMED AND WERE PAID $104, COMPUTED AT A RATE OF $1.04 PER 100 POUNDS ON A MINIMUM WEIGHT OF 10,000 POUNDS. THE ACTUAL WEIGHT OF THE SHIPMENT WAS 7,890 POUNDS. SUBSEQUENTLY, YOU SUBMITTED YOUR SUPPLEMENTAL BILL FOR ADDITIONAL CHARGES OF $26.08 ON BILL OF LADING NO. N-14224528 AND $147.10 ON BILL OF LADING NO. N-30226167.

THE ADDITIONAL CHARGES OF $26.08 ON THE SHIPMENT TRANSPORTED UNDER BILL OF LADING NO. N-14224528 WERE CLAIMED ON THE GROUND THAT THE LIGHT AND BULKY ARTICLES RULE, TARIFF RULE 120,"* * * IS ON A PER ARTICLE BASIS * * *," THUS INCREASING THE "CUBED WEIGHT TO 44,013 POUNDS.' YOUR CLAIM ON THIS SHIPMENT WAS DISALLOWED IN ITS ENTIRETY FOR THE REASON THAT SUBPARAGRAPH (B) OF TARIFF FULE 120 PROVIDES THAT CHARGES UNDER THE LIGHT AND BULKY ARTICLES RULE WILL NOT EXCEED THE CHARGES THAT WOULD ACCRUE UNDER RULE 110, WHEN THE SHIPMENT IS COMPLETELY LOADED ON EQUIPMENT ORDERED AND FURNISHED. ITEM 110 PROVIDES A MINIMUM WEIGHT OF 40,000 POUNDS FOR THE 35-FOOT VEHICLE SHOWN ON THE PRESENT BILL OF LADING AS HAVING BEEN USED, AND SINCE CHARGES WERE ORIGINALLY PAID ON THE BASIS OF A 40,000 POUND MINIMUM WEIGHT NOADDITIONAL AMOUNT WAS FOUND DUE.

IN YOUR REQUEST FOR REVIEW OF THIS PARTICULAR DISALLOWANCE YOU ARGUE THAT NEITHER RULE 110 NOR RULE 120 (B) APPLY, SINCE "* * * THE RECORD CONTAINS NO INDICATION OF A DEMAND BY THE SHIPPER FOR EXCLUSIVE USE OF CARRIER'S EQUIPMENT OR AN INDICATION THAT THE SHIPPER ANNOTATED THE BILL OF LADING AS TO THE SIZE OF THE EQUIPMENT ORDERED AND FURNISHED.' IN CONNECTION WITH RULE 110, WHICH PROVIDES FOR EXCLUSIVE USE, YOU REFER TO A DECISION OF THE COMPTROLLER GENERAL, B-131798, DATED MARCH 2, 1959, AND QUOTE AS FOLLOWS:

"THEREFORE, THE BODY OF RULE 110 PERTAINS ONLY TO SHIPMENTS INVOLVING THE EXCLUSIVE USE OF CARRIER'S EQUIPMENT, AND THE TERMS OF RULE 110 COME INTO PLAY ONLY "WHEN EXCLUSIVE USE OF CARRIER'S EQUIPMENT IS REQUIRED OR DEMANDED BY THE SHIPPER TO MEET THE NEEDS OF SPECIAL CONDITIONS * * *.'"

YOU GO ON TO STATE "THIS COULD NOT BE ANY CLEARER. EXCLUSIVE USE WAS NOT REQUIRED OR DEMANDED BY THE SHIPPER AND THERE WERE NO SPECIAL CONDITIONS TO WARRANT IT. THEREFORE, RULE 110 CAN NOT APPLY IN THIS CASE BY YOUR OWN ADMISSION.'

WE AGREE THAT EXCLUSIVE USE WAS NOT REQUESTED AND THE EXCLUSIVE-USE RULE, AS SUCH, HAS NO APPLICATION. HOWEVER, THE BASIS FOR THE COMPUTATION OF MINIMUM CHARGES FOR EXCLUSIVE USE AS SET FORTH IN RULE 110 IS INCORPORATED BY REFERENCE IN RULE 120 (B) AS THE BASIS FOR THE COMPUTATION OF MAXIMUM CHARGES TO BE ASSESSED UNDER THE CIRCUMSTANCES THEREIN SET FORTH. INCORPORATION OF THE PROVISIONS OF ANOTHER ITEM OR DOCUMENT MAKES THOSE PROVISIONS AS MUCH A PART OF THE ITEM MAKING THE REFERENCE AS IF ORIGINALLY SET FORTH SPECIFICALLY THEREIN WITH ALL CONDITIONS AND LIMITATIONS, EXCEPT AS OTHERWISE PROVIDED. BURDINES V. PAN ATLANTIC STEAMSHIP CORP., 199 F.2D 571; UNITED STATES V. SEABOARD AIRLINE RY., 22 F.2D 113; LAMMERT FURNITURE CO. V. SOUTHER RY., 126 I.C.C. 197, 198. OUR DECISION, B-131798, OF MARCH 2, 1959, CITED BY YOU, CHARGES HAD ALREADY BEEN PAID ON THE BASIS OF THE LIGHT AND BULKY ARTICLES RULE, RULE NO. 120, AND, THEREFORE, THE PROVISIONS OF RULE NO. 120 (B) WERE NOT PERTINENT AND WERE NOT CONSIDERED.

CONCERNING YOUR ALLEGATION THAT THE SIZE OF THE EQUIPMENT ORDERED WAS NOT NOTED ON THE BILL OF LADING, THERE IS NO REQUIREMENT IN ITEM 120 (B) THAT AN ORDER FOR EQUIPMENT OF A PARTICULAR SIZE BE NOTED ON THE BILL OF LADING. THEREFORE, THE APPLICATION OF THE PROVISIONS OF RULE NO. 120 (B/- -- WHILE CONDITIONED UPON AN ORDER BY THE SHIPPER FOR EQUIPMENT OF A PARTICULAR SIZE--- IS NOT CONDITIONED UPON A NOTATION ON THE BILL OF LADING TO THAT EFFECT. TARIFFS ARE TO BE CONSTRUED ACCORDING TO THE PLAIN MEANING OF THEIR TERMS AND UNEXPRESSED INTENTIONS MAY NOT BE IMPLIED. SOUTHERN PACIFIC V. LOTHROP, 15 F.2D 486; TRANSITOR VEGETABLE OILS IN SOUTHERN TERRITORY, 197 I.C.C. 705; WOOLSON SPICE CO. V. PENNSYLVANIA R.CO., 39 I.C.C. 583; BON MARCHE V. CENTRAL R. OF N.J., 21 I.C.C. 195. CONSEQUENTLY, IF THE SHIPPER PLACED AN ORDER FOR THE ONE 35-FOOT VEHICLE USED RULE 120 (B) APPLIES NOTWITHSTANDING LACK OF A NOTATION ON THE BILL OF LADING OR THE FACT THAT EXCLUSIVE USE WAS NOT REQUESTED.

HOWEVER, RELIANCE IN THIS CASE NEED NOT BE PLACED UPON THE APPLICATION OF THE MAXIMUM CHARGE PROVISION OF RULE 120 (B), IN THE ABSENCE OF EVIDENCE IN THE RECORD THAT THE 35-FOOT VEHICLE USED WAS IN FACT ORDERED, SINCE RULE 120 (A), UPON WHICH YOU BASE YOUR CLAIM, HAS NO APPLICATION. CONTRARY TO YOUR CONTENTION THAT RULE 120 (A) APPLIES "ON A PER ARTICLE BASIS * * *" THUS INCREASING THE "CUBED WEIGHT TO 44,013 POUNDS," OUR OFFICE STATED, IN 37 COMP. GEN. 350, AT 351--- CONCERNING THE APPLICATION OF RULE 120 (A) OF SOUTHWESTERN MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 1--- THAT SINCE THE VARIOUS ARTICLES COMPRISING THE SHIPMENT IN THE AGGREGATE WEIGH IN EXCESS OF 15 POUNDS PER CUBIC FOOT, THERE IS NO JUSTIFICATION FOR THE APPLICATION OF THE CUBIC FOOT RULE TO EACH ARTICLE IN THE SHIPMENT, WHICH IS SUBJECT TO THE ,FREIGHT N.O.S.' RATES.

SIMILARLY, ALTHOUGH CERTAIN INDIVIDUAL ARTICLES IN THE PRESENT SHIPMENT WEIGHED LESS THAN 15 POUNDS PER CUBIC FOOT, THE VARIOUS ARTICLES COMPRISING THE SHIPMENT IN THE AGGREGATE WEIGHED IN EXCESS OF 15 POUNDS PER CUBIC FOOT. CONSEQUENTLY, AS STATED IN OUR DECISION IN 37 COMP. GEN. 350, THERE IS NO JUSTIFICATION FOR APPLICATION OF THE LIGHT AND BULKY ARTICLES RULE IN THIS CASE. ACCORDINGLY, THE DISALLOWANCE OF THIS PORTION OF YOUR CLAIM IS SUSTAINED.

CONCERNING YOUR CLAIM FOR $147.10 ADDITIONAL FOR THE SERVICE PERFORMED UNDER GOVERNMENT BILL OF LADING NO. N-30226167, $85 WAS ALLOWED ON THE SETTLEMENT AND THE BALANCE, $62.10 ($147.10 LESS $85), WAS DISALLOWED. THIS RESULTED IN AN AGGREGATE PAYMENT OF $189, COMPUTED ON THE BASIS OF THE 7,890 POUNDS, AS 27,000 POUNDS, AT A RATE OF 70 CENTS PER 100 POUNDS, PURSUANT TO ITEM NO. 68 OF PACIFIC STATES MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 3. ITEM NO. 68 PROVIDES FOR THE COMPUTATION OF DISTANCES, WHEN MILEAGE OR RATE BASIS NUMBERS ARE NOT PROVIDED IN SECTION 1 OF THE QUOTATION, AND READS AS FOLLOWS:

"COMPUTATION OF DISTANCES

(WILL NOT APPLY WHEN MILEAGES OR RATE BASIS NUMBERS

ARE PROVIDED IN SECTION 1)

"THE DISTANCE RATES IN THIS TARIFF ARE GOVERNED BY MILEAGES AND THE METHODS OF ARRIVING AT MILEAGES AS SET FORTH IN DISTANCE TABLE NO. 3 ISSUED BY THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA.'

IN YOUR REQUEST FOR REVIEW YOU ARGUE THAT ITEM 68 IS NOT APPLICABLE BECAUSE A MILEAGE FIGURE IS PROVIDED IN SECTION 1 FROM SAN DIEGO TO EL CENTRO AND A NOTE PROVIDES THAT MOVEMENTS TO OR FROM NORTH ISLAND WILL TAKE THE BASIS OF RATES TO OR FROM SAN DIEGO, PLUS RATES SHOWN ON PAGE 34.

CIRCLE REFERENCE ONE ON FIRST REVISED PAGE 22, IN SECTION 1 OF PACIFIC STATES MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 3, PROVIDES, IN CONNECTION WITH RATES BETWEEN NORTH ISLAND AND SAN DIEGO: "APPLY RATES TO OR FROM SAN DIEGO PLUS RATES SHOWN ON PAGE 34.' ASSUMING THAT THIS NOTE PROVIDES A BASIS FOR THE COMPUTATION OF RATES BETWEEN NORTH ISLAND AND ANY POINT IN CONNECTION WITH WHICH A MILEAGE OR RATE BASIS NUMBER IS PUBLISHED IN SECTION 1 FOR MOVEMENT TO OR FROM SAN DIEGO, IT DOES NOT PROVIDE MILEAGE OR A RATE BASIS NUMBER FOR NORTH ISLAND. CONSEQUENTLY, SINCE APPLICATION OF ITEM 68--- WHICH PROVIDES A METHOD FOR THE COMPUTATION OF MILEAGES FOR DETERMINING A MILEAGE RATE--- IS PROHIBITED ONLY BY THE PUBLICATION OF MILEAGE OR OF A RATE BASIS NUMBER IN SECTION 1 OF QUOTATION NO. 3, THE APPLICATION OF ITEM 68 IS NOT PROHIBITED IN CONNECTION WITH MOVEMENTS TO OR FROM NORTH ISLAND BECAUSE OF THE LACK OF THE NECESSARY MILEAGE OR RATE BASIS NUMBER IN SECTION 1.

IN THE PRESENT INSTANCE, EVEN IF IT BE DEEMED THAT TWO BASES, OR LINES OF RATES, ARE SHOWN BETWEEN NORTH ISLAND AND EL CENTRO, THE SHIPPER OR CONSIGNEE IS ENTITLED TO THE BENEFIT OF THE LOWER RATE. SEE:BOONE V. UNITED STATES, 109 F.2D 560; SWIFT AND CO. V. AKRON, C. AND Y.RY., 235 I.C.C. 173; LIGHT GRAIN AND MILLING CO. V. A.T. AND S.F.RY., 146 I.C.C. 743, 744; OLSEN V. GREAT SOUTHERN R., 115 I.C.C. 195; CADDO CENTRAL OIL RFG. CO. V. DIRECTOR GENERAL, 92 I.C.C. 627, 631. AGAIN, IF THE LANGUAGE OF THE TARIFF IS DEEMED TO BE AMBIGUOUS, OR TO PERMIT DOUBT CONCERNING THE APPLICATION OF THE TARIFF, THE SHIPPER IS ENTITLED TO RESOLVE THE DOUBT AGAINST THE CARRIER AND IN HIS OWN FAVOR. SOUTHERN RY.CO. V. COCA-COLA BOTTLING CO., 145 F.2D 304; UNION WIRE ROPE CORP. V. A.T. AND S.F.RY., 66 F.2D 965, 967, 969, CERT. DENIED 290 U.S. 686; TIDE WATER ASSOCIATED OIL CO. V. ALTON AND S.R., 289 I.C.C. 42, 47.

IN THE PRESENT INSTANCE THE LANGUAGE USED IN RULE 68 SEEMS CLEARLY TO AUTHORIZE THE BASIS OUTLINED THEREIN WITHOUT NECESSITATING RESORT TO RELIANCE UPON ANY CLAIM OF DOUBLE RATES OR AMBIGUITY. ACCORDINGLY, THIS PORTION OF YOUR CLAIM ALSO IS DISALLOWED.

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